If the trustee paid the debt he would have the right to be subrogated to the plaintiff in his claim against the company, which is the foundation of the recovery. In the case at bar there is no debt which can presently be enforced against the company.
I dissent therefore.
Judgment reversed, with costs, and demurrer sustained, with costs in tliis court and in the court below, with leave to defendants to ■amend answer in twenty days on payment of such costs.